Archive for month: January, 2016

Most employees in California are entitled to a 30-minute uninterrupted meal break when the employee works at least 5 hours in a day. Employers that fail to provide the required meal break may be subject to a penalty equal to one hour at the employee’s regular rate of pay. When “the nature of the work prevents an employee from being relieved of all duty,” and when the employer and employee enter into a written on-duty meal agreement, the employer may be able to avoid the penalty. The on-duty meal agreement, however, must “state that the employee may, in writing, revoke the agreement at any time.”

In Palacio v. Jan & Gail’s Care Homes, Inc., an employee brought a class action alleging the employer failed to inform the employees that they had a right to revoke the company’s on-duty meal agreement. The court not only denied class certification, but also held the care homes do not have to tell employees they can revoke an on-duty meal agreement.

Care Homes do not have to tell employees they can revoke an on-duty meal agreement

But, why? If the regulations require on-duty meal agreements to contain a provision that the employee may revoke the agreement in writing, how come the court said the employer did not have to have such a provision in the agreement? Because a different part of the regulations specifically state:

Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24-hour residential care, and employees of 24-hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met:

(1) (a) The residential care employees eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or

(b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no charge to the employee.

So, while most employers that can use on-duty meal agreements must inform employees of the right to revoke the on-duty meal agreement at any time, Care Homes do not have to tell employees they can revoke an on-duty meal agreement. Employers should also be aware that not ever employer can use an on-duty meal agreement.

If you have a question about your on-duty meal agreement, or whether such an agreement is appropriate in your workplace, contact an attorney familiar with on-duty meal agreements.

Companies are struggling to keep up to date with the different minimum wage obligations. Federal minimum wage is lower than California minimum wage which is lower than some cities’ minimum wage. I’ve been struggling to find a useful place that has all the information I and my clients need to find the different minimum wage obligations, and have been hoping for a minimum wage tracker for some time.

Minimum Wage Tracker

I’m sure the Economic Policy Institute didn’t create its tracker just for me–particularly since I was not aware of the site before today–but they created a minimum wage tracker that is useful and comprehensive. The tracker can be accessed through EPI’s website.

You can click on any state, or any city with a minimum wage ordinance, and get information regarding the current minimum wage obligations. The tracker is particularly useful for any companies with employees working in multiple cities.

Minimum Wage Tracker

So, thank you EPI for the very useful minimum wage tracker!

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The FLSA provides that it is unlawful for an employer to: “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]” 29 U.S.C. § 215(a)(3). Employees fired for retaliation in violation of the FLSA can sue their employer.

But what if the employee’s job is to report violations of the company to the employer so the employer can decide whether to fix the problem? Has the employee “filed a complaint,” or just done the employee’s job? In Rosenfield v. Globaltranz Enterprises, the Ninth Circuit held an HR Director can state a claim that she was fired for retaliation when she reported violations of the FLSA to the employer.

Alla Rosenfield was the Director of Human Resources for Globaltranz. Throughout her employment, Plaintiff reported to her superiors that the company was not compliant with the FLSA, and she repeatedly sought changes to attain statutory compliance. After GlobalTranz fired Plaintiff, she filed a lawsuit alleging that she was fired for retaliation in violation of the FLSA. Plaintiff claimed GlobalTranz fired her for complaining to other managers and to executives that GlobalTranz was failing to comply with the FLSA. The court had to decide whether an HR Director can state a claim for retaliation under the FLSA when it was her job to bring FLSA violations to the employer’s attention.

HR Directors and Managers Can Sue when Fired for Retaliation

Even though the district court recognized that Plaintiff had “advocated consistently and vigorously on behalf of . . . GlobalTranz’s employees whose FLSA rights Plaintiff thought were being violated,” the district court held that she nevertheless was not entitled to the protections of § 215(a)(3) because she had not “filed any complaint” for purposes of the FLSA.

Unlike some laws, congress did not create a detailed federal supervision system or process requiring government payroll inspections. Rather, it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. The FLSA is not supposed to be a “gotcha” statute and “seeks to establish an enforcement system that is fair to employers.” “To do so, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 1334 (2011).

In Kasten, the Supreme Court established a “fair notice” test for deciding whether an employee has “filed any complaint” under the anti-retaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3): “[A] complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

If an entry-level employee reported that someone is underpaid in violation of the FLSA and requested that the employee be compensated in compliance with the Act, a reasonable employer almost certainly would understand that report as a “complaint.” But if the identical report were made by a manager tasked with ensuring the company’s compliance with the FLSA, a reasonable employer may not understand that report as a “complaint.” Rather, the employer think the manager was just carrying out his or her duties. Therefore, when determining whether an employee has “filed any complaint,” the employee’s role as a manager often is an important contextual element.

According the Ninth Circuit:

The employee’s job title and responsibilities—in particular, whether he or she is a manager—form an important part of that “context.” Generally speaking, managers are in a different position vis-a-vis the employer than are other employees because (as relevant here) their employer expects them to voice work-related concerns and to suggest changes in policy to their superiors. That may be particularly true with respect to upper-level managers who are responsible for ensuring compliance with the FLSA.

The Ninth Circuit held that a complaining employee’s position as a manager is an important part of the “context” that the fact-finder must consider, and a jury reasonably could find that Plaintiff, a managerial employee, filed such a complaint. Because Kasten requires consideration of the content and context of an alleged FLSA complaint, the question of fair notice must be resolved on a case-by-case basis. An employee’s managerial position is only one consideration.

The court declined to formulate or adopt a special bright-line rule to apply when considering whether a manager has “filed any complaint” within the meaning of the FLSA.

Even if an employee is responsible for reporting violations of the law to the employer, such reports can constitute “filing a complaint,” and serve as the basis for a retaliation complaint. Employers must carefully consider a number of factors before terminating an employee (even and at-will employee). Employers may need to take particular care when terminating HR employees or other managers whose job requires them to report violations of the law.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

Rosa Lee Cardenas worked for M. Fanaian, D.D.S., Inc. as a dental hygienist. When Ms. Cardenas could not locate her wedding ring—she typically took it off while performing her job duties—she called the local police and reported that a coworker may have stolen her ring. After the police came to the workplace on two separate occasions, the employer pulled Ms. Cardenas aside and told her that “the situation was causing great tension and discomfort among the staff, and that he was going to have to let her go.” Cardenas filed a lawsuit alleging she was fired for reporting theft of her wedding ring. A jury agreed and awarded her $117,768 in damages. The lesson: Don’t fire employees for reporting theft at work.

Don’t Fire Employees for Reporting Theft

Fanaian appealed claiming the real reason Cardenas filed a police report was to serve her private interest, not a public purpose, and a termination in violation of public policy does not exist when the employee reports a purely personal issue (e.g., not something related to the employment). Cardenas claimed that Labor Code section 1102.5 stands alone, and does not require a separate showing that the employee’s subjective motivation and/or the particular crime he or she reported concerned a fundamental public policy. Cardenas pointed out that section 1102.5 embodies a sufficient public policy for purposes of permitting an award of damages.

The court of appeals agreed, and affirmed the judgment. “[T]he plain and unambiguous language of section 1102.5(b) creates a cause of action for damages against an employer who retaliates against an employee for reporting to law enforcement a theft of her property at the workplace.”

Anytime an employee reports a suspected crime to the police, he or she is possibly engaging in protected activity. Employers should be mindful that Labor Code section 1102.5 is very broad, and terminating an employee because the employee complained or made know his or her intention to complain to a government agency is unlawful. Fanaian learned the hard way not to fire employees for reporting theft of personal items at work.

I’ve written several articles regarding the somewhat recent shift toward courts upholding arbitration agreements. A few years ago, California courts in particular were reluctant to force employees into arbitration even when the parties agreed to resolve all disputes through arbitration. After AT&T Mobility LLC v. Concepcion, 563 U. S. 333, held that California’s Discover Bank rule was pre-empted by the Federal Arbitration Act, more and more courts have upheld arbitration agreements. Still, some courts try to find ways to bring cases outside AT&T’s broad application. The result of this case: arbitration agreement upheld.

In DirectTV, Inc. v. Imburgia the U.S. Supreme Court upheld another arbitration agreement. DIRECTV, Inc., and its customers entered into a service agreements that included a binding arbitration provision with a class-arbitration waiver. It specified that the entire arbitration provision was “unenforceable if the ‘law of your state’ made class-arbitration waivers unenforceable.” The agreement also declared that the arbitration clause was governed by the Federal Arbitration Act. When the plaintiffs entered into that agreement, California law made class-arbitration waivers unenforceable (see Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P. 3d 1100, subsequently overruled by AT&T Mobility LLC v. Concepcion, 563 U. S. 333).

When the customers sued DirectTV, the trial court denied the company’s request to order the matter to arbitration, and the California Court of Appeal affirmed. The court thought that California law would render class-arbitration waivers unenforceable, so it held the entire arbitration provision was unenforceable under the agreement. The fact that the Federal Arbitration Act pre-empted that California law did not change the result, the court said, because the parties were free to refer in the contract to California law as it would have been absent federal pre-emption. The court reasoned that the phrase “law of your state” was both a specific provision that should govern more general provisions and an ambiguous provision that should be construed against the drafter. Therefore, the court held, the parties had in fact included California law as it would have been without federal pre-emption.

Arbitration Agreement Upheld

The U.S. Supreme court held that because the California Court of Appeal’s interpretation is preempted by the Federal Arbitration Act, that court must enforce the arbitration agreement. No one can deny that courts must follow Concepcion, but that does not resolve the issue because the parties are free to choose the law governing an arbitration provision, including California law as it would have been if not pre-empted.

According to the Supreme Court, the California court’s interpretation did not place arbitration contracts “on equal footing with all other contracts,” because California courts would not interpret contracts other than arbitration contracts the same way. Several considerations led to this conclusion:

First, the phrase “law of your state” is not ambiguous and takes its ordinary meaning: valid state law.

Third, because the court nowhere suggests that California courts would reach the same interpretation in any other context, its conclusion appears to reflect the subject matter, rather than a general principle that would include state statutes invalidated by other federal law.

Fourth, the language the court uses to frame the issue focuses only on arbitration.

Fifth, the view that state law retains independent force after being authoritatively invalidated is one courts are unlikely to apply in other contexts.

Sixth, none of the principles of contract interpretation relied on by the California court suggests that other California courts would reach the same interpretation elsewhere. The court applied the canon that contracts are construed against the drafter, but the lack of any similar case interpreting similar language to include invalid laws indicates that the anti-drafter canon would not lead California courts to reach a similar conclusion in cases not involving arbitration.

It worth noting that this case was decided 4 to 3, with Justices Thomas, Ginsburg and Sotomayor dissenting. As Justice Thomas has repeatedly said in the past, he believes that the Federal Arbitration Act (FAA), does not apply to proceedings in state courts. Justices Ginsburg and Sotomayor thought “California court’s interpretation of the ‘law of your state’ provision is not only reasonable, it is entirely right.”

Many U.S. Supreme Court decisions upholding arbitration agreements are won on a 4 to 3 vote. It will be interesting to see what will happen when one of the Supreme Court justices retires and is replaced by a new judge.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

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